CONDUCTING THE PUBLIC’S BUSINESS IN PUBLIC

CONDUCTING THE PUBLIC'S BUSINESS IN PUBLIC

A guide to South Dakota's Open Meetings Law

(Revised Fall 2015)

Prepared by representatives of the:

S.D. Attorney General's Office S.D. Municipal League

Associated School Boards of S.D. S.D. Association of County Commissioners

S.D. Association of County Officials S.D. Newspaper Association S.D. Broadcasters Association

S.D. Association of Towns and Townships

Published by: South Dakota Newspaper Association 1125 32nd Ave. Brookings, SD 57006

WHAT IS SOUTH DAKOTA'S OPEN MEETINGS LAW?

South Dakota's open meetings law embodies the principle that the public is entitled to the greatest possible information about public affairs and is intended to encourage public participation in government. SDCL 1-25-1 requires that official meetings of public bodies must be public and notice is to be given of such meetings 24 hours in advance of the meetings. While the open meetings law does not define "official meeting," specific statutes relating to cities, townships, counties, and school districts define what constitutes an official meeting. In addition, the attorney general takes the position that a meeting must be open to the public if:

1) A legal quorum of the public body is present at the same place at the same time; and 2) Official business, meaning any matter relating to the activities of the entity, is discussed. Openness in government is encouraged.

WHO DOES THE OPEN MEETINGS LAW APPLY TO?

The open meetings law applies to all public bodies "of the state or its political subdivisions" that exercise "sovereign power derived from state law." SDCL 1-25-1. This includes cities, counties, school boards and other public bodies created by ordinance or resolution, such as appointed boards, task forces, and committees, so long as they have authority to actually exercise sovereign power. Although no court decisions have been issued on the subject, this probably does not include bodies that are not created by statute, ordinance or resolution or that serve only in an advisory capacity. The state Constitution allows the Legislature and the Unified Judicial System to create rules regarding their own separate functions.

ARE TELECONFERENCES CONSIDERED PUBLIC MEETINGS?

Yes. The open meetings law allows meetings, including executive or closed meetings, to be conducted by teleconference ? an information exchange by audio or video ? if a place is provided for the public to participate by speaker phone. In addition, for teleconferences where less than a quorum is present at the location open to the public, arrangements must also be made for the public to listen by telephone or internet (except for portions of meetings properly closed for executive sessions). The media and public must be notified of teleconference meetings under the same notice requirements as any other meeting. All votes shall be taken by roll call.

HOW ARE THE PUBLIC AND MEDIA NOTIFIED WHEN PUBLIC BUSINESS IS BEING DISCUSSED?

SDCL 1-25-1.1 requires that all public bodies prominently post a notice and copy of the proposed agenda at the public body's principal office. At a minimum, the proposed agenda must include the date, time, and location of the meeting and must be visible, readable, and accessible to the public for 24 continuous hours immediately preceding the meeting. Also, if the public body has its own website, the notice must be posted on the public body's website upon dissemination of the notice. For special or rescheduled meetings, public bodies must comply with the regular meeting notice requirements as much as circumstances permit. The notice must be delivered in person, by mail, by email, or by telephone to all local news media who have asked to be notified. It is good practice for local media to renew requests for notification of special or rescheduled meetings at least annually.

WHO ARE LOCAL NEWS MEDIA?

There is no definition of "local news media" in SDCL ch. 1-25. "News media" is defined in SDCL 13-1-57 generally as those personnel of a newspaper, periodical, news service, radio station, or television station regardless of the medium through which their content is delivered. The Attorney General is of the opinion that "local news media" is all news media ? broadcast and print ? that regularly carry news to the community.

WHEN CAN A MEETING BE CLOSED TO THE PUBLIC AND MEDIA?

SDCL 1-25-2 allows a public body to close a meeting for the following purposes: 1) to discuss personnel issues pertaining to officers or employees; 2) consideration of the performance or discipline of a student, or the student's participation in interscholastic activities; 3) consulting with or reviewing communications from legal counsel about proposed or pending litigation or contractual matters; 4) employee contract negotiations; or 5) to discuss marketing or pricing strategies of a publicly-owned competitive business.

The statute also recognizes that executive session may be appropriate to comport with other laws that require confidentiality or permit executive or closed meetings. Federal law pertaining to students and medical records will also cause school districts and other entities to conduct executive sessions or conduct meetings so as to refrain from releasing confidential information. Meetings may also be closed by cities and counties for certain economic development matters. SDCL 9-34-19.

Note that SDCL 1-25-2 and SDCL 9-34-19 do not require meetings be closed in any of these circumstances.

Any official action based on discussions in executive session must, however, be made at an open meeting.

WHAT IS THE PROPER PROCEDURE FOR EXECUTIVE SESSIONS?

Motions for executive sessions must refer to the specific state law allowing for the executive session i.e. "pursuant to SDCL 1-25-2(3)." Also, best practice to avoid public confusion would be that public bodies explain the reason for going into executive session. For example, the motion might state "motion to go into executive session pursuant to SDCL 1-25-2(1) for the purposes of discussing a personnel matter," or "motion to go into executive session pursuant to SDCL 1-252(3) for the purposes of consulting with legal counsel."

Discussion in the executive session must be strictly limited to the announced subject. No official votes may be taken on any matter during an executive session. The public body must return to open session before any official action can be taken.

Board members could be held personally liable for the results of an official vote taken illegally during an executive session. For example, a contract approved only during an executive session could be found void and the board members could be required to repay any public funds spent under the contract.

WHAT HAPPENS IF THE MEDIA OR PUBLIC IS IMPROPERLY EXCLUDED FROM A MEETING OR OTHER VIOLATIONS OF THE OPEN MEETING LAW OCCUR?

Excluding the media or public from a meeting that has not been properly closed subjects the public body or the members involved to (a) prosecution as a Class 2 misdemeanor punishable by a maximum sentence of 30 days in jail, a $500 fine or both or (b) a reprimand by the Open Meeting Commission ("OMC"). The same penalties apply if the agenda for the meeting is not properly posted or other open meeting violations occur.

Also, action taken during any meeting that is not open or has not been properly noticed could, if challenged, be declared null and void. It could even result in personal liability for members of the governing body involved, depending upon the action taken.

HOW ARE ISSUES REFERRED TO THE OPEN MEETINGS COMMISSION ("OMC")?

Persons alleging violations of the open meetings laws must make their complaints with law enforcement officials in the county where the offense occurred. After a signed notarized complaint is made under oath, and any necessary investigation is conducted, the State's Attorney may (a) prosecute the case as a misdemeanor, (b) find that the matter has no merits and file a report with the Attorney General for statistical purposes or (c) forward the complaint to the OMC for a determination. The OMC is comprised of five State's Attorneys appointed by the Attorney General. The OMC examines whether a violation has occurred and makes written public findings explaining its reasons. If you have questions on the procedures or status of a pending case, you may contact the Attorney General's Office at 605-773-3215 to talk to an assistant for the OMC. Procedures for the OMC are posted on the website for the Office of Attorney General.

WHAT DOES THE TERM "SOVEREIGN POWER" MEAN?

The open meetings law does not define this term, but it generally means the power to levy taxes,

impose penalties, make special assessments, create ordinances, abate nuisances, regulate the conduct of others, or perform other traditional government functions. The term may include the exercise of many other governmental functions. If an entity is unclear whether it is exercising "sovereign power" it should consult with legal counsel.

MAY AGENDA ITEMS BE CONSIDERED IF THEY ARE ADDED LESS THAN 24 HOURS BEFORE A MEETING?

Proposed agendas for public meetings must be posted at least 24 hours in advance of the meeting. The purpose of providing advance notice of the topics to be discussed at a meeting is to provide information to interested members of the public concerning the governing body's anticipated business. Typically the public body adopts the final agenda upon convening the meeting. At this time, the governing body may add or delete agenda items and may also change the order of business. In 2012, the South Dakota Supreme Court affirmed a South Dakota Circuit Court decision which held that a preliminary agenda may be amended when the board takes action to formally adopt the meeting agenda. See Molden v. Grant-Deuel School Dist. 25-3, Order Directing Issuance of Judgment of Affirmance, So. Dak. Sup. Ct. # 26325, October 9, 2012. New items cannot be added after the agenda has been adopted by the governing body. Public bodies are strongly encouraged to provide 24 hours notice of all agenda items so as to be fair to the public and to avoid dispute.

For special or rescheduled meetings, public bodies are to comply to the extent circumstances permit. In other words, posting less than 24 hours in advance may be permissible in emergencies.

ARE EMAIL DISCUSSIONS "MEETINGS" FOR PURPOSES OF THIS LAW?

Courts in some states have held that contemporaneous email communications among a quorum of the governing members of a public body constitute a "meeting" of the public body when the members discuss the merits of pending issues. Email participation in scheduling or similar activity would not, under this analysis, constitute a public meeting. For additional reference see Wood v. Battle Ground School District, 27 P.3d 1208 (Wash. 2001); 2008 N.D. Op. Atty. Gen. 0-22.

WHAT RECORDS MUST BE AVAILABLE TO THE PUBLIC IN CONJUNCTION WITH PUBLIC MEETINGS?

There are a number of state laws pertaining to public records (SDCL ch. 1-27). Some are specific to records of meetings. For example, SDCL 1-27-1.17 requires that draft minutes of public meetings must be made available to the public at the principal place of business for the public body within 10 business days after the meeting (or made available on the website for the public body within five business days).

Another law provides that meeting packets or materials given out to members of a public body must also be made available to the public when provided to the public body, but this law also contains various exemptions. These laws are in addition to any specific requirements for public bodies (i.e., publication requirements in state laws pertaining to cities, counties, or school districts). Enforcement of these public records law are handled by separate procedures in SDCL 1-27-35, et.seq. rather than the open meeting procedures described above. Violations of SDCL 127-1.16 and 1-27-1.17 are also Class 2 misdemeanors.

WHAT REQUIREMENTS APPLY TO TASK FORCES, COMMITTEES AND WORKING GROUPS?

Task forces and committees that exercise "sovereign power" and are created by statute, ordinance, or proclamation are required to comply with the open meetings law. SDCL 1-25-1. Task forces, committees, and working groups that are not created by statute, ordinance, or proclamation, or are advisory only may not be subject to the open meetings law, but are encouraged to comply to the extent possible when public matters are discussed. Ultimately, if such advisory task forces, committees and working groups present any reports or recommendations to public bodies, the public bodies must wait until the next meeting (or later) before taking final action on the recommendations. SDCL 1-27-1.18. _____________________________________________________________________________

PERTINENT S.D. OPEN MEETINGS STATUTES

(other specific provisions may apply depending on the public body involved)

1-25-1. OPEN MEETINGS. The official meetings of the state, its political subdivisions, and any public body of the state or its political subdivisions are open to the public unless a specific law is cited by the state, the political subdivision, or the public body to close the official meeting to the public. For the purposes of this section, a political subdivision or a public body of a political subdivision means any association, authority, board, commission, committee, council, task force, school district, county, city, town, township, or other agency of the state, which is created or appointed by statute, ordinance, or resolution and is vested with the authority to exercise any sovereign power derived from state law.

It is not an official meeting of one political subdivision or public body if its members provide information or attend the official meeting of another political subdivision or public body for which the notice requirements of ? 1-25-1.1 have been met.

Any official meeting may be conducted by teleconference as defined in ? 1-25-1.2. A teleconference may be used to conduct a hearing or take final disposition regarding an administrative rule pursuant to ? 1-26-4. A member is deemed present if the member answers present to the roll call conducted by teleconference for the purpose of determining a quorum. Each vote at an official meeting held by teleconference shall be taken by roll call.

If the state, a political subdivision, or a public body conducts an official meeting by teleconference, the state, the political subdivision, or public body shall provide one or more places at which the public may listen to and participate in the teleconference meeting. For any official meeting held by teleconference, which has less than a quorum of the members of the public body participating in the meeting who are present at the location open to the public, arrangements shall be provided for the public to listen to the meeting via telephone or internet. The requirement to provide one or more places for the public to listen to the teleconference does not apply to an executive or closed meeting.

If a quorum of township supervisors, road district trustees, or trustees for a municipality of the third class meet solely for purposes of implementing previously publicly-adopted policy, carrying out ministerial functions of that township, district, or municipality, or undertaking a factual investigation of conditions related to public safety, the meeting is not subject to the provisions of this chapter. A violation of this section is a Class 2 misdemeanor.

1-25-1.1. PUBLIC NOTICE. All public bodies shall provide public notice, with proposed agenda, that is visible, readable, and accessible for at least an entire, continuous twenty-four hours immediately preceding any meeting, by posting a copy of the notice, visible to the public, at the principal office of the public body holding the meeting. The proposed agenda shall include the date, time, and location of the meeting. The notice shall also be posted on the public body's website upon dissemination of the notice, if such a website exists. For special or rescheduled meetings, the information in the notice shall be delivered in person, by mail, by email, or by telephone, to members of the local news media, who have requested notice. For special or rescheduled meetings, all public bodies shall also comply with the public notice provisions of this section for regular meetings to the extent that circumstances permit. A violation of this section is a Class 2

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